From September 1997 through October 1999, undercover ATF Agents
Blake Boteler and Darrell Edwards investigated members and associates of the
Sons of Silence Motorcycle Club for narcotics and firearms violations. (PSR at
4.) Agent Boteler was introduced to Defendant during the course of the
investigation (Sent. Tr. at 59), and Defendant told Agent Boteler that he
possessed an unregistered Sten machine gun (id. at 62). On July 14, 1998,
Defendant showed Agent Boteler the parts necessary to manufacture a machine
gun and said that he could acquire Sten machine gun kits for $100 each. (PSR at
5.) On September 26, Agent Boteler asked Defendant to manufacture and sell
him five Sten machine guns. (Id.)

On October 1, Defendant agreed to manufacture the
machine guns, and he
and Agent Boteler agreed on a price. (Id.) Defendant said that he would have
some of the parts sent to his neighbor's house so there would be no record of the
parts coming to Defendant's address. (Id.) Agent Boteler then advised
Defendant that his actions would become illegal when Defendant assembled the
firearms. (Id.) Defendant told Agent Boteler that he would advise Steven
Kressin, the Sons of Silence National Vice President, of the deal. (Id.) Kressin
was to weld the guns together. (Id.) Agent Boteler then said to Defendant, "I
want to make sure this is something you want to do and I ain't twisting your
arm." (Id.) Defendant stated that Agent Boteler was not twisting his arm and
that he did not mind doing the deal. (Id.)

Defendant thereafter manufactured and sold a total of 20 machine guns to
Agent Boteler on five occasions from October 19, 1998, to September 16, 1999.
(Doc. 1198 at 3.) During the course of these transactions, Defendant informed
Agent Boteler that his illegal machine gun trafficking was "extremely insulated"
to avoid detection. (See Doc. 1316, Att. 3156.) Specifically, Defendant
informed Agent Boteler that several people involved only deal in individual parts
of guns. (Id.) Defendant stated that he had been dealing in illegal machine guns
for years and that there was no chance of being caught. (Id.)

After completion of the investigation, Defendant and eighteen co-defendants were
charged in a 27-count indictment with various narcotics and
firearms offenses. (See Doc. 407.) Defendant was charged with five counts of
knowingly and unlawfully possessing a machine gun, in violation of 18 U.S.C.
§ 922(o). (Seeid. at 8-10.) In exchange for dismissal of the
remaining counts,
Defendant pled guilty to Count VI, which charged him with knowingly and
unlawfully possessing one machine gun on October 19, 1998. (Docs. 407, 1198-99, 1362.)
Defendant was sentenced to 49 months' imprisonment.

DISCUSSION

In this appeal, Defendant challenges the constitutionality of the statute
under which he was convicted, the calculation of his base offense level, and the
district court's decision not to grant Defendant a downward departure based on
the government's alleged sentencing factor manipulation. We address each
argument in turn.

A. Constitutionality of 18 U.S.C. §
922(o)

Defendant first argues that 18 U.S.C. § 922(o), the statute under which he
was convicted, is an impermissible exercise of the authority granted to Congress
under the Commerce Clause. In United States v. Wilks, we upheld § 922(o) as a
permissible exercise of the power granted to Congress under the Commerce
Clause. 58 F.3d 1518, 1522 (10th Cir. 1995); see alsoUnited States v. Haney,
264 F.3d 1161, 1171 (10th Cir. 2001).

B. Sentencing as a "Prohibited Person"

Defendant next argues that his sentence is improper
because he was
indicted and convicted under § 922(o) but was sentenced as a "prohibited person"
under § 922(g)(3), an offense that was not charged in the indictment. Defendant
appears to be arguing that the district court's application of the Sentencing
Guidelines violated his Fifth and Sixth Amendment rights under Apprendi v.
New Jersey, 530 U.S. 466 (2000). We review the district court's legal
conclusions under the sentencing guidelines de novo and factual determinations
for clear error. United States v. Lacey, 86 F.3d 956, 962 (10th Cir. 1996).

The Supreme Court in Apprendi held that "[o]ther than the fact of prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt." 530 U.S. at 490. Apprendi is not implicated when judges find facts
increasing the sentence below the maximum sentence for the crime committed.
SeeHarris v. United States, 536 U.S. 545, 565 (2002) ("[F]acts guiding judicial
discretion below the statutory maximum need not be alleged in the indictment,
submitted to the jury, or proved beyond a reasonable doubt."). Accordingly, a
defendant need not necessarily be charged in the indictment as a prohibited
person in order for the defendant's status as a prohibited person to be used in the
base offense level calculation. United States v. Bennett, 329 F.3d 769, 778
(2003).

In this case, Defendant pled guilty to unlawful possession
of a machine
gun in violation of 18 U.S.C. § 922(o). The statutory maximum for a § 922(o)
violation is 10 years. 18 U.S.C. § 924(a)(2). Pursuant to § 2K2.1(a)(4) of the
Sentencing Guidelines, the base offense level for unlawful possession of this type
of firearm by a "prohibited person" is 20.(2)SeeU.S.S.G. § 2K2.1(a)(4). A
"prohibited person" is "any person described in 18 U.S.C. § 922(g) or § 922(n)."
U.S.S.G. § 2K2.1 cmt. 6. Section 922(g)(3) prohibits the possession of a firearm
by any person "who is an unlawful user of or addicted to any controlled
substance." 18 U.S.C. § 922(g)(3).

The district court concluded that Defendant was a prohibited person under
§ 922(g)(3) based on evidence that Defendant ingested marijuana and/or
methamphetamine on numerous occasions after June 1998. (Memo. of Sent. Hrg.
at 2.) Accordingly, the court assigned Defendant a base offense level of 20
which, after adjustments to the offense level and in conjunction with his criminal
history category, resulted in a sentencing range of 41 to 51 months'
imprisonment. The court sentenced Defendant to 49 months' imprisonment, well
below the 10-year statutory maximum for a § 922(o) offense. Because the
sentence imposed fell below the statutory maximum, there was no violation of
Defendant's Fifth and Sixth Amendment rights under Apprendi. SeeBennett,
329 F.3d at 778.

C. Sentencing Factor Manipulation Defendant argues that the district court erred in declining to depart
downward based on the government's sentencing factor manipulation. Again, we
review the district court's legal conclusions under the sentencing guidelines de
novo and factual determinations for clear error.(3)Lacey, 86 F.3d at 962.

Arguments presented as "sentencing factor manipulation" or "sentencing
entrapment" are analyzed under the "outrageous conduct" standard that is
invoked to prevent the government from prosecuting a crime developed through
egregious investigatory tactics. Lacey, 86 F.3d at 963. "[T]he relevant inquiry is
whether, considering the totality of the circumstances in any given case, the
government's conduct is so shocking, outrageous and intolerable that it offends
the universal sense of justice." Id. at 964 (internal quotations omitted). The
remedy is reserved for the most egregious of cases due in primary part "to the
reluctance of the judiciary to second-guess the motives and tactics of law
enforcement officials." Id.

We have said that "[t]o succeed on an outrageous conduct defense, the
defendant must show either: (1) excessive government involvement in the
creation of the crime, or (2) significant governmental coercion to induce the
crime." United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994). "[I]t is
not outrageous for the government...to induce a defendant to repeat, continue, or
even expand previous criminal activity." Id."In inducing a
defendant to repeat
or expand his criminal activity, it is permissible for the government to suggest the
illegal activity, provide supplies and expertise, and act as both a supplier and
buyer of illegal goods." Id. Law enforcement officers are often
justified in
increasing the scope of criminal activity in a sting operation, especially when
attempting to ensnare those persons higher up in the criminal enterprise. Lacey,
86 F.3d at 965.

In the instant case, Defendant received a 4-level enhancement based on
his
manufacture and sale of 20 machine guns to Agent Boteler. (See Memo. of Sent.
Hrg. at 2.) Defendant claims that the government engaged in sentencing factor
manipulation by providing the capital for him to purchase the materials required
for the manufacture of additional machine guns and by inducing Defendant to
continue manufacturing machine guns. Accordingly, Defendant requested a 4-level downward
departure.

Agents Boteler and Edwards were engaged in a two-year undercover
narcotics and firearms investigation of Defendant and others associated with the
Sons of Silence. (PSR at 4.) The government explained that the purpose of
Agent Boteler's repeated machine gun purchases was to identify additional
persons involved in the manufacture of the guns. (See Doc. 1316 at 11-12.)
Indeed, Defendant had informed Agent Boteler that at least one member of the
Sons of Silence (Kressin) was involved in the manufacture of the guns and that
Defendant's neighbors might also have been involved. (See PSR at 5.) In
addition, Defendant had told Agent Boteler that his illegal machine gun
trafficking was "extremely insulated" to avoid detection. (See Doc. 1316, Att.
3156.)

In light of this evidence that others were involved in Defendant's criminal
enterprise, Agent Boteler's repeated purchases of unlawful machine guns from
Defendant does not amount to conduct so "shocking, outrageous and intolerable"
as to justify a downward departure. Accordingly, we find no error in the district
court's decision not to grant a downward departure on this basis.

CONCLUSION

In sum, we conclude that the statute under which Defendant was convicted
is constitutional, that Defendant was properly sentenced as a "prohibited person"
for a violation of 18 U.S.C. § 922(o), and that the district court did not err in
refusing to grant a downward departure based on Defendant's claim of sentencing
factor manipulation. Accordingly, we AFFIRM Defendant's conviction and
sentence.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

FOOTNOTESClick footnote number to return to corresponding location in the text.

*.After examining appellant's brief and the
appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. The court generally disfavors
the citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.

1.On May 6, 2004, Defendant moved to
expedite these proceedings. We
dismiss that motion as moot. Defense counsel has also filed a motion to
withdraw under Anders v. California, 386 U.S. 738 (1967). Because we find that
Defendant has raised no non-frivolous issues on appeal, we grant that motion.

2.The district court advised Defendant
before he entered his plea that his
base offense level would be 20 if the court found Defendant to be a "prohibited
person." (Doc. 1198 at 4.)

3.In general, we have no jurisdiction to
review the district court's refusal to
grant a downward departure. United States v. Davis, 900 F.2d 1524, 1529-30
(10th Cir. 1990). Nonetheless, we have accepted jurisdiction to review a district
court's assessment of a defendant's request for downward departure based on
sentencing factor manipulation. Lacey, 86 F.3d at 962 n.2.